Judges are required to be impartial finders of fact, but they also have thoughts and opinions about political causes and public policy debates, just like everyone else.
When a Rockville judge shared some thoughts from the bench about the origins of the constitutional right to bear arms, and his views about a Torrington lawyer's work representing gun owners, it raised some eyebrows. Judge Edward J. Mullarkey's was accused of comparing lawyer Rachel Baird, who is known for representing gun owners, to the historic Western gunslinger Annie Oakley.
There were reportedly other insults. Baird says she was informed that "anyone who supports the Second Amendment should be ashamed." And Mullarkey, who graduated from Harvard Law School, reportedly told her "I'll speak slowly" because she went to Yale.
Baird shot back. She promptly requested that Mullarkey recuse himself from the case, in which Baird was representing a man accused of disorderly conduct and lying to police.
The request for recusal resulted in a flurry of emails among lawyers who represent gun owners in issues regarding their rights to possess and carry firearms. The matter also caught the attention of lawyers who represent judges in grievance cases.
Among the latter is Steven Selligman, who said judges have to be mindful of what they say during court sessions. After all, a judge's comments about a defense lawyer or defendant can be fodder for later appeals. Any sign of bias from the court can result in an overturned conviction.
"Judges have the duty, among other things, to uphold the integrity and impartiality of the judiciary," said Selligman, a Hartford lawyer who represents judges when they face complaints of wrongdoing by the Judicial Review Counsel. Selligman said he wasn't in position to say anything good or bad about how the judge handled this case. But speaking generally, he said, judges "have to refrain from saying anything that would interfere with the appearance of being unbiased."
No one has suggested that Mullarkey's actions should bring about a formal complaint. But Baird cited Malarkey's comments when she argued he should relinquish this case. Under the Code of Judicial Conduct, a judge is required to step down from a case if requested if there impartiality might be reasonably challenged.
Baird, who has spoken publically about her litigation efforts on behalf of gun owners in the aftermath of the fatal school shooting in Newtown last year, said she was moved to request a new judge because she was concerned that her client would not receive a fair trial. At the same time, Baird said in the request she filed in Rockville Superior Court, her client was concerned he could not receive a fair trial by any judge in Connecticut, "due to the events of December 14 in Newtown."
Her client, Christopher Peterson, 38, of Winchester, was arrested in June. Vernon police said they were called to a report of domestic violence. When they questioned Peterson, he told them he did not have any firearms. Police said that information was untrue. Instead, they accused Peterson of illegally possessing several guns, based on his criminal record.
Peterson was arrested on multiple charges, including criminal possession of a firearm, disorderly conduct and giving a false statement. Baird succeeded in convincing the State's Attorney's Office to dismiss all of the firearms-related charges. For one thing, a prior arrest in Florida did not result in a felony conviction, as law enforcement authorities had initially believed.
Prosecutors, however, refused to dismiss the charges relating to the false statements Peterson gave to police. That led to a trial last week in which Peterson was found not guilty of disorderly conduct and guilty of giving a false statement. Although the case no longer directly related to guns, Baird said Mullarkey made repeated remarks at a pre-trial hearing about her work on behalf of gun owners.
Among other things, Baird said in her request for recusal, the judge told her she should familiarize herself with a 1998 University of California at Davis Law Review article. That article, titled "The Hidden History of the Second Amendment," discusses the theory that the Second Amendment was approved because southern plantation owners wanted assurances they would have firearms with which to control slave revolts.
The article by Carl T. Bogus, a professors at Rhode Island's Roger Williams University School of Law and a gun control supporter, has been widely downloaded in the months since the Newtown school shootings.
After the judge asked Baird whether she knew about the article, an afternoon recess was taken. When the judge stood to leave the courtroom, Baird said, he told the court reporter not to record what he was about to say. "The Court then stated, as he stood at the bench, that those who support the Second Amendment should be ashamed," Baird said.
Also, when it was announced that a witness for the defense was not going to be available during the upcoming trial, the judge reportedly told Baird, "you should know a lot of people in Wyoming." Baird explained in her motion that she took that to mean that it would be easy for her to find a pro-gun person in that western state.
Together, Baird said, the judge's comments were defamatory, and "distracted from her ability to competently represent her client."
At the end of the day, however, Baird withdrew her request for a new judge. She said that the recusal request had been her first in 20 years as a trial lawyer, and she didn't make it lightly.
"I withdrew the motion, stating on the record that my client's concerns were addressed by [Mullarkey's] response" that he would recuse himself if he believed he could not be impartial, Baird said. "The issue resolved itself to my client's satisfaction after the motion was filed." The jury trial went forward and was decided by the split verdict on Friday. Peterson's conviction on the lone misdemeanor will not affect his eligability to possess firearms in the future, Baird said, but a conviction for the other charge could have. During the rest of the trial, she said, the judge listened to her legal arguments "with respect."
Selligman said while such motions are rare, they are sometimes raised as a way for defense counsel to preserve an issue for appeal.
He added: "Lawyers who represent unpopular people or causes should not be accused of having the tendencies their clients have," Selligman said. "For instance, if I represent a Ku Klux Klansman, you should not assume that I am a member of the KKK."
Still, Selligman offered some understanding for the judge, who very well may have had not intended to hurt anyone's feelings or to treat anyone unfairly.
"A court day is a very long day," he said. "In my 34 years of practice, I have attempted to make jokes and failed and offended. I've attempted to make conversation that might have been misconstrued…. I would not presume to speculate about the judge's or attorney Baird's state of mind regarding these purported statements, but sometimes people try to say something with the most benign of intent, but with the most significant of appearance."
Mullarkey, a veteran judge who has been a member of the bar since 1971, and court administrators declined to comment on the incident. Other lawyers who represent gun owners as part of their practices said they have never experienced anything quite like what Baird described.
"I've been fortunate in my career; I've never been in a position where I felt I had to request a recusal on behalf of my client," said David Crow, an Orange attorney who represents gun owners seeking to have their permits restored, along with other general practice cases. "I'm not here to make a call on whether that was the right move for her to make. Every lawyer has a duty to their client to represent them in a way that best serves their interests. If attorney Baird truly felt that she had to make that motion to protect her clients interests, then she did the right thing."•